Elton v Jones S207/2000 [2001] HCATrans 269 (22 June 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S207 of 2000

B e t w e e n -

SCOTT PETER ELTON

Applicant

and

IVAN JONES

Respondent

Office of the Registry

Sydney No S208 of 2000

B e t w e e n -

SCOTT PETER ELTON

Applicant

and

CLINTON JAMES CARIAN

Respondent

Office of the Registry

Sydney No S209 of 2000

B e t w e e n -

SCOTT PETER ELTON

Applicant

and

CHRISTOPHER CARIAN by his tutor DEBBIE ANNE LAURIE

Respondent

Office of the Registry

Sydney No S210 of 2000

B e t w e e n -

SCOTT PETER ELTON

Applicant

and

DEBBIE ANNE LAURIE

Respondent

Applications for special leave to appeal

GLEESON CJ

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 JUNE 2001 AT 10.42 AM

Copyright in the High Court of Australia

__________________

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MS R.A. PEPPER, for the applicant in the first of those matters, I think it is, your Honours. (instructed by Matthews Dooley & Gibson)

GLEESON CJ: Before we take the other appearances, I am just puzzled why have they come up this way, Mr Jackson? Did they not all arise out of the same case?

MR JACKSON: Yes, your Honour, but your Honour will appreciate we, in the one in which I am concerned, as plaintiff, sued the owner of the motorbike. Now, we were sued and covered by an insurance policy in respect of claims against us and my learned friend, Mr Hislop, appears for my client in respect of those matters.

GLEESON CJ: Is it convenient to you and to all other counsel if we deal with these four matters together?

MR JACKSON: Yes, your Honour.

GLEESON CJ: They were all the subject of one trial, were they not?

MR JACKSON: Yes. Your Honour, and as between myself and Mr Hislop, we have agreed I go first.

GLEESON CJ: It is probably then convenient if we take the appearance of Mr Hislop next.

MR J.D. HISLOP, QC: May it please the Court, I appear with my learned friend, MR D.J. RUSSELL, for the applicant in the three matters that are listed at No 4 in the Court's list today. (instructed by Ray Wehbe & Co)

MR R.F. SUTHERLAND: If your Honours please, I appear for the purported respondent in the matter of 207. (instructed by Turner Whelan)

MR P.C.B. SEMMLER, QC: May it please the Court, I appear with my learned friend, MR T.J. BOYD, for the respondents, Carian and Laurie. (instructed by Herbert Weller)

GLEESON CJ: All right, if it is convenient to counsel, we will hear submissions in the order in which appearances have been announced.

MR JACKSON: Thank you, your Honour.

McHUGH J: An order for extension of time is required in two of the matters, but not yours, I think, Mr Jackson. I think Mr Hislop's matter requires - - -

MR HISLOP: Yes, that is so, your Honour.

GLEESON CJ: Is that opposed?

MR SEMMLER: No, it is not, your Honour. Your Honour, could I just - your Honour said whether it is convenient to counsel. Mr Sutherland and I had, prior to sitting, agreed that I would go first - - -

GLEESON CJ: All right, we will hear Mr Jackson, then Mr Hislop, then Mr Semmler, then Mr Sutherland.

MR SEMMLER: Thank you, your Honour.

GLEESON CJ: Yes, Mr Jackson.

MR JACKSON: Your Honours, this is an application which we base squarely on the unsatisfactory manner in which the appeal was dealt with by the majority in the Court of Appeal resulting, in our submission, in a serious injustice to the applicant. We would support that, your Honour, by reference to the two other considerations which were referred to in our written submissions at page 95 of the application book, paragraphs 38 and 39. Your Honours, if I could seek to develop our submissions. As the Court is aware, the issue, ultimately before the primary judge, was which of, Mr Elton, the present applicant, or Mr Carian, was in control of the motorbike at the time it ran into a tree; both were riding on it.

The judge had accepted the evidence of a Mr Jones that when the bike was last seen by him, the person in control was Carian rather than Elton. Your Honours will see that at page 3, about line 29, and your Honours will see that his Honour there said:

For that reason I accept the truth of his assertion in the statement that Carian was in control of the motorcycle when it was last under his observation.

He said, "This conclusion accords with the evidence of" Carian, and the evidence to which he refers is on the next page and I will come to it in just a moment, your Honours.

Now, your Honours, there was evidence, and it is that evidence, from Elton that he was the passenger until what must have been a very short time before the accident. Your Honours will see, at page 4, a reference at about line 19, to a statement made by him and then immediately following that, at line 41, to "His oral evidence" being to the same effect.

Now, your Honours, the evidence to which reference is there made, your Honours will see at lines 19 to 41 on page 4, where he said that the two of them "decided to", and perhaps if I could emphasise the words, "go for a ride" on the motorbike, and then the expression "ride" is used on a number of occasions through that, and your Honours will see, particularly, that in paragraph 7 at about line 36 on that page, there is a reference to:

riding along Grose Vale Road when we got to the area where they have just laid a new part of road.

That was, as Your Honours will see from the top of page 5, a distance of "about 200 metres" from the place where the accident happened.

GLEESON CJ: Mr Jackson, this case really turned upon the appreciation of a very narrow set of facts and the ultimate outcome in the Court of Appeal was to order a new trial so that another judge is going to take a fresh look at those facts. Why should we become involved?

MR JACKSON: Well, your Honour, our submission is that the Court should because this is a case where it did, as your Honour said, turn on the appreciation of facts. The evidence was called in relation to it from the various persons who are potential witnesses. The case was very much one involving the view taken by a primary judge when he saw those witnesses and it is an issue on which that, having been done in an entirely orthodox way, in our submission, the judge arrived at a conclusion in our favour. In circumstances of that kind, we would submit we are entitled to maintain the verdict, particularly where one sees the way in which the case was dealt with by the Court of Appeal.

What I mean by that, your Honours, is that one really sees the majority in the Court of Appeal doing exactly the kind of things that one sees suggested in Hontestroom v Sagaporack in the passage picked up by the Court in Abalos, is the sort of thing the Court of Appeal should not be doing, that is itself combing through the evidence as it were and forming its own view in relation to matters of disputed fact. Your Honours, what we would ultimately say, if I can say in response to what your Honour the Chief Justice put to me, is that this is a case where, after a trial, we obtained a verdict and there was no basis at all for it to be disturbed. Now, your Honours, to have a new trial leaves the issue open but it is an issue that should not have been. It should not now be open, it should have been decided in our favour.

Your Honours, if the evidence of the applicant that is referred to at page 4, was accepted, then the applicant had to succeed in the trial. But, as the primary judge recognised, there was evidence to the contrary. That evidence was essentially that of a Mr Cooper who had come out to see the scene. That is referred to at page 6 and summarised at lines 6 to 51, and the essence of it was that he said that the present applicant had said that he had been riding the bike.

Now, your Honours, the view taken by the judge was then to regard Cooper's evidence as, whilst honestly given, not being reliable, and your Honours will see his discussion of that commencing at the bottom of page 6 and going through to page 7 at about line 41. In particular, your Honours, if I could just refer to one aspect of it, he referred to a report of a police officer and, in particular, a passage at about line 40 on page 7, that "he apparently could not recall all of the conversation" that he was said to have had with us.

Your Honours, having looked at that evidence and seen the evidence given by Mr Cooper, the judge then arrived at the conclusion, which is at page 10, about line 39. He said there was "no unequivocal evidence" on which he would "base a finding", that one, rather than the other, was "in charge of the bike". He said the evidence which he would regard as reliable, that is the reference back to the evidence, no doubt, of Jones, which was to the same effect as the evidence given by the applicant:

using as an aid the presumption of continuance, indicates that Carian was in control when the motorcycle struck the tree -

and, your Honours, all he was saying there was really those things. There was no unequivocal evidence one way or the other. The evidence he did accept showed that Carian was in charge at an earlier point. He used as an aid the presumption that nothing had changed.

In our submission, if one goes to what was said by the dissenting judge in the Court of Appeal, Justice Handley, at page 55, in paragraph 55 of the reasons, he was entirely correct in his analysis of what the primary judge had done. May I refer your Honours to lines 16 through to the end of paragraph 55 on the page having the same number. Your Honours, the majority in the Court of Appeal adopted different reasons. May I go first to Justice Fitzgerald at page 60, paragraph 69? Your Honours will see that at the end of that paragraph, his Honour said:

Because Mr Cooper's evidence of Elton's admission was disregarded, the trial judge did not correctly assess the reliability of Elton's evidence.

Your Honours, with respect, it is plain, in our submission, if one looks at what took place, that it is the very thing the primary judge could look at, the reliability of Elton's evidence, and arrived at a conclusion favourable to him.

Justice Fitzgerald also agreed with the view of Justice Handley, the dissenting judge, to the effect that the primary judge had accepted our evidence. You will see that at page 58, paragraph 64, the last three lines. Your Honours will then see the approach taken by the other member of the majority, the President of the Court of Appeal, at pages 42 and 43. Could I refer particularly, your Honours, to the reason that he gives in the paragraph numbered 27 on page 42, and your Honours will see that goes through to about line 46 on page 43, and what the judge is doing there, in our submission, is to do the very thing that the Court in Abalos, in our submission, said should not be done.

May I take your Honours, for just a moment, to Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167. At page 178, at the top of the page, your Honour Justice McHugh, with whose reasons the other members of the Court agreed, referred to the observations of Lord Sumner, and if I could take you to the fourth line of that quotation:

the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case.

Your Honours, if one goes back, for a moment, to page 43 of the application book, your Honours will see, for example, at the top of the page, his Honour saying:

Read as a whole, Cooper's evidence indicates to me that he was firm in his recollection that a clear and specific admission was made by Elton.

Well, your Honours, the primary judge saw him give the evidence.

GLEESON CJ: What is going to happen to all these principles when, next year or the year after, the Courts of Appeal have available to them video tapes of the entire proceedings at first instance?

MR JACKSON: It may produce some change, your Honour, it may produce some change and, your Honour, the generality of the principle must, of course, bend in its application to particular circumstances. What I mean by that is that it may be, if one has, for example, some evidence given by video tape. Now, sometimes a witness is more protected by being at a distance from what is going on than would be the case if the witness were present in court. Sometimes less at ease because of the absence of other people around.

GLEESON CJ: Anyway, that is a distraction.

MR JACKSON: It is the same thing in special leave applications by video, your Honour. Your Honours, the point I am seeking to make is that really what was being done by Justice Mason was the very thing that Abalos said one should not do.

Your Honours, the last thing I wanted to say in relation to the particular way in which the case was dealt with was this: the observations which appear at pages 43, at the bottom of the page and the top of the next page, concerning the presumption of continuance, really overstate what was done by the primary judge because, when one goes back to page 10, what the primary judge said - and I have taken your Honours to the passage already - was that he simply used it as an aid, as is the ordinary thing, no more than that.

GLEESON CJ: It was not much use in this case, was it, bearing in mind the distance that was travelled and the time that elapsed?

MR JACKSON: Well, your Honour, the thing was that if one - there are really two aspects to it, your Honour. One was that he appears, in our submission, to have accepted clearly the first half of what appears at page 4. That is that he was on the bike as a pillion passenger and - I say that, your Honour, because that was the same as the evidence that was given by Jones. Now, your Honour, the other thing was that there was nothing to suggest that the judge had not accepted they continued, that they were riding along Grose Vale Road in the same way until they got to the bitumen where he could not remember anything after that.

GLEESON CJ: What was the time that elapsed between when they took off and the time the accident happened.

McHUGH J: Half an hour, was it not?

MR JACKSON: Well, less than half an hour, your Honour. The judge was not able to - that appears at the top of page 4.

McHUGH J: That is what puzzled me about that passage at page 10:

The only evidence which I regard as reliable, using as an aid the presumption of continuance -

It seems strange to talk about a "presumption of continuance" when, if he accepted Elton that they had got to the new part of the road, that was only 200 metres from the accident.

MR JACKSON: Yes. Your Honour, the point I would seek to make is really that, either that is what he was saying - I accept that it may have been perhaps better expressed, but your Honour will see at the top of page 5, that he says:

There is some significance in Elton's reference in his statement to "a new part of road" -

because, in effect, that is only 200 metres away. What we would say is a first position, is that he was accepting the evidence that up to 200 metres away he was on the back of the bike. The second view of it is that he was not saying that but was saying he had been on the bike the last time anyone independent saw them and in those circumstances, the time was something less than half an hour. He was not able to say precisely how much but they are talking about 3 or 4 kilometres between the two places.

McHUGH J: Just further down page 5, the judge did refer to "presumption of continuance" in the context of the Elton reference to the new part of the road.

MR JACKSON: I am sorry, your Honour, I just did not catch that?

McHUGH J: Further down page 5, the judge did refer to the "presumption of continuance" in the context of Elton's statement that they had got to the new part of the road.

MR JACKSON: Yes, your Honour. So, your Honours, that is the way in which he was using that. Can I say, your Honours, one last thing about Justice Mason's reasons, and that is at page 44, about line 39, where his Honour does appear, in a sense, to have given.....to the presumption of continuance of notion. His Honour says:

The presumption of continuance is essentially a matter of relevance. It is part of a rational method of weighing the strength of two competing pieces of evidence.

Well, your Honours, it may be that there is not competing evidence at all but it assists in filling what otherwise would be a gap in the evidence.

McHUGH J: What is special about this case? On your argument, it is just a misapplication of the Abalos principles. I know every six or seven years we seem to have to exercise what I call our visitorial jurisdiction and uplift one of these cases and remind intermediate Courts of Appeal that they are once again departing from Hontestroom principles but - - -

MR JACKSON: Your Honour, the Court, of course, can grant special leave in a case where it thinks it appropriate to do so and at the start of our submissions I sought to make the point that we would say this is a case where there was a significant injustice in the case, first of all, because what we had was a judgment arrived at in circumstances where the application of the ordinary test meant that the judgment should be respected. When one goes to what was done by the Court of Appeal, the members of the Court of Appeal were not even unanimous in the view they took in relation to it. So that one sees three quite disparate judgments and in the majority of two, quite different approaches - - -

GLEESON CJ: But it was an awkward factual case. The majority took the view that the trial judge had not dealt with the facts appropriately and they sent it back for another judge to have another look at the facts.

MR JACKSON: Yes. Your Honour would appreciate that, in circumstances where there has been a difficult case with the facts and one where there is likely to be difficulty in the future with the facts because the same issues will arise, that there is a great deal to be said for the notion that the judgment of the primary judge should not be set aside except on good grounds, even if one gets another go because, your Honour, we are talking about something that happened quite some time ago. Your Honours, those are our submissions.

GLEESON CJ: Thank you, Mr Jackson. Yes, Mr Hislop.

MR HISLOP: Thank you, your Honour. Your Honours, we would adopt and rely upon the submissions made by Mr Jackson. We would add one thing. In the case which Mr Jackson has argued, Mr Elton was the plaintiff and thus had to prove that he was not in control of the bike at the time. In the three cases with which we are concerned, Mr Elton as the defendant, it was necessary for Mr Carian to affirmatively prove that Mr Elton was riding. At page 10 of the application book, to which Mr Jackson has taken the Court and which Mr Justice Mason in his judgment described as the climax of the trial judge's judgment, we find, at line 40, the judge making these comments:

After anxious thought I have concluded that there is no unequivocal evidence upon which I can safely rely to base a finding that Elton rather than Carian was in charge of the bike.

He then goes on to make a finding, an affirmative finding that Carian was in control. But we say that for the purposes of the matters with which we are concerned, it is sufficient for our purposes to rely upon the first sentence in that paragraph and that the failure by the Court of Appeal to uphold that finding amounts to the very type of injustice to which Mr Jackson referred which, in our submission, would justify the interference by this Court. So that, in essence, that is the short additional matter which we would add to what has been previously put.

GLEESON CJ: That additional matter indicates there is a difference between your case and Mr Jackson's case.

MR HISLOP: Not in any detail. We would, firstly, be content to have the judge's finding that the bike was under the control of Mr Carian at the time of the accident upheld so that, to that extent, there is no difference between our position.

McHUGH J: It seems to me that the point you have just made makes your case a much more powerful case than that of Mr Jackson because you can read that passage at page 40 as saying, "Well, there is just no unequivocal evidence which points to Carian discharging the onus of proof".

MR HISLOP: Yes, and that is what I intended to say when I said we do not have to go that far. We are able to establish a lesser thing to justify the upholding of his Honour's judgment in so far as the case where the applicant was the defendant.

McHUGH J: Technically, it may have been wiser for you to go first.

MR HISLOP: Well, it has fallen as it has, your Honour.

GLEESON CJ: Just remind me about the evidence of the admission. Where do we see the terms of that admission?

MR HISLOP: At page 5 at 15 one finds - - -

McHUGH J: Page 6, I think.

MR HISLOP: Page 6, yes, at about line 5, his Honour commences to deal with the evidence of Mr Cooper and then he continues with that. Then, at the bottom of page 6, at line 55, he says that whilst he did:

not doubt the honesty of Mr Cooper his evidence as to the admission made to him by Elton poses some difficulty.

He then set out a number of matters which pose that difficulty in his view and we could ally that with what Mr Justice Handley had to say on his review of the evidence because there were other matters in relation to the evidence of Mr Cooper which made it unreliable and unsatisfactory, and his Honour Mr Justice Handley picks that up at page 50 of the application book at about line 20. I mean, this man had made no note of the - - -

GLEESON CJ: Let me just pursue this matter about the onus of proof. Am I not right in thinking that this was a case in which there was a joint trial in which, in effect, everybody sued everybody else?

MR HISLOP: Yes.

GLEESON CJ: Now, if the trial judge had ultimately come to the conclusion in that single trial that he could not decide who was riding the bike at the relevant time, that would have had consequences for all cases, would it not?

MR HISLOP: Yes.

GLEESON CJ: What you submit, or the particular submission you have added to Mr Jackson's submission, is that the proper outcome of this case would have been for the trial judge to say, "In all actions, there will be a verdict for the defendant because I cannot work out who was riding the bike".

MR HISLOP: Not quite, your Honour, because - - -

GLEESON CJ: Presumably, the whole idea of having all these cases heard together was that they would not go off on the onus of proof.

MR HISLOP: Well, your Honour, there is a difference because what his Honour did was make an actual finding as to who was in control. He comes to Carian was in control. That meant that one had the results which fell. Mr Elton succeeded in his claim for personal injury. There was a verdict to the defendant in the others.

GLEESON CJ: That is right. All I am suggesting to you is that the outcome of the cases would have been very different if the judge had said, "I am hearing these four actions together". I presume the evidence in one was evidence in the other.

MR HISLOP: Yes.

GLEESON CJ: "And I have come to the conclusion that I cannot work out who was riding at the time of the accident, therefore, there will be a verdict for all of the defendants in all cases".

MR HISLOP: Yes. If he had stopped there, in that statement at page 10, that would follow, your Honour. But he did not, and he went on to find a particular thing. But before that, he quite clearly has stated that there was no unequivocal evidence upon which he could rely to base a finding that Elton rather than Carian was in charge of the bike. The result of those findings is that even if the court did not go so far as to uphold that Carian was riding, it would still find in relation to the actions brought against Elton that there should be a verdict for the defendant, and - - -

McHUGH J: You can rely on the first sentence but Mr Jackson had to have the second sentence - - -

GLEESON CJ: But you say a possible outcome in the High Court if we took on this appeal is that we would simply say, "All these actions should be dismissed on the onus of proof".

MR HISLOP: That would be a possible result, yes.

GLEESON CJ: It would not be a very attractive result, having regard to the fact that the whole purpose of hearing all the four cases together was to avoid such a result, I would have thought.

MR HISLOP: Well, your Honour, it really highlights the fact that this matter has not been, perhaps - that the Court of Appeal should have upheld the trial judge's original decision which has the consequences for my client, if that was upheld, of there being a verdict for the defendant, which is what, I submit, that even on just adopting the first line of his Honour's conclusion is sufficient and would produce the same result. So that is really the point.

GLEESON CJ: Thank you, Mr Hislop. Yes, Mr Semmler.

MR SEMMLER: Your Honours, to understand the error made by the learned trial judge and to understand why the Court of Appeal was entitled to do what it did, it is necessary to understand the way in which the trial judge arrived at his conclusion. The trial judge decided this case on the basis of his acceptance of one portion of the evidence of one witness, that is Mr Jones, a witness whom he observed to be a very unsatisfactory witness, who at times was deliberately unhelpful to the court. The trial judge seized upon one thing that he said, that is when Mr Jones last saw the bike Carian was riding or was in control; Elton was the passenger.

He went from there to decide that, on the facts as he understood them, the presumption of continuance could apply, and did apply, and then he went on to inquire as to whether the presumption had been displaced. Then, after reviewing the evidence he reached a conclusion that there was no unequivocal evidence to base a finding that Elton was in charge, the implication being that he was directing himself that he needed unequivocal evidence to displace this presumption that he had decided should apply. Therefore, he decides the case on the basis of what Mr Jones had to say plus the presumption of continuance.

McHUGH J: But why do you say that? It certainly was not the view that Justice Fitzgerald took of the case.

MR SEMMLER: Yes. Well, your Honour, he did not - - -

McHUGH J: I do not think it is the view that the trial judge did take. The whole reference to the presumption of continuance follows the statement on page 5 about Elton's reference to a new part of the road. That is when presumption of continuance is introduced.

MR SEMMLER: But the fact that it chronologically follows, or it follows on the same page, does not mean that he has moved from an assumption that what Elton said is correct, to the application of the presumption of continuance. The reason why - it is patently clear, in our respectful submission, from the structure of the judgment that the judge has not accepted what Mr Elton said, is twofold. One is, he makes the observation further up on page 5 that Mr Cooper:

heard the sound of the motorcycle without abatement for the whole of that distance -

that is the last 200 metres -

This would suggest that during that period at least Carian and Elton did not change places.

That is the trial judge's view of Mr Cooper's evidence. If that is his view, and if he accepted Mr Elton's account that up until that point he can recall being the passenger, then there would be absolutely no reason whatsoever for the trial judge to resort to the presumption of continuance to decide this case.

McHUGH J: Why not? What he said was, "This would suggest that during that period", and then he refers to counsel's submissions, that he relied upon the "presumption of continuance". It strikes me as very odd to argue that "presumption of continuance" is really a reference to what Jones has said. There is not a reference to it in relation to Jones.

MR SEMMLER: Well, your Honour, it would follow, in our respectful submission, as night follows day, that if he accepts the evidence of a witness that up until the last 200 metres that witness was the passenger, and he also draws the conclusion that the evidence of another witness suggests that there was no change of riders in that last 200 metres, that would be the end of it. A verdict would follow automatically. A finding that Elton was still the passenger as at the time the bike collided with the tree would follow inextricably.

Your Honours, he did not do that. He goes on to discuss the "presumption of continuance". He refers to a case of Swinburne. With due respect, your Honour, there is absolutely no reason why the trial judge would trouble himself to talk about the facts of another case where the presumption, he believed, was thought to apply in a situation where the time period could have been as much as an hour, in similar facts to this. He would not have needed to do that if he was applying a presumption to the last few moments of the journey in this case. He was clearly not doing so.

The reason why he goes to a case like Swinburne is because he is justifying to the reader that his conclusion that the presumption of continuance applies in this case, not to a tiny gap of the last 200 metres, as my learned friend Mr Jackson would have it, but to a yawning chasm, both temporally and spacially, of possibly half an hour and three or four kilometres. A chasm in which we are dealing with two young boys, 15 and 16, who are affected by alcohol; who are on a joy ride on a motorbike; who are both unlicensed; and the judge, from those facts, concludes that it is appropriate to apply this presumption, to assume that what happened three or four kilometres earlier, and possibly up to half an hour earlier, continued to apply as a matter of logical inference when the bike hit the tree.

There was no foundation for that presumption and it is quite apparent from his reference to cases like Swinburne and the facts, and from the reference to Mr Cooper's evidence, that he does not rely upon what Mr Elton says. He does not say it explicitly and, as a matter of logic, it cannot be implied. What he does do, in our submission, is to rely upon something that - one part of one witness's evidence and the presumption, and after anxious thought, concludes that the only evidence he regards as reliable is the evidence of Mr Cooper. If your Honours carefully peruse the judgment, your Honours will see that at the only point that the trial judge makes a positive assertion as to a particular of evidence as something he accepts, is at page 3, line 30. He says:

I accept the truth of his assertion in the statement that Carian was in control of the motorcycle -

Your Honours, a fair reading of this judgment must result in that conclusion and if that is the case - - -

GLEESON CJ: Can I take you to the bottom of page 5, the last two lines on page 5 and the first two lines on page 6? I am just not sure I understand what that means:

The question remains whether the presumption of continuance has been displaced in this case so as to require a finding that Elton was the person in control -

If you displace the presumption, you displace the presumption, but why would the displacement of the presumption require a finding?

MR SEMMLER: Because if he relies only on the presumption, linking it to the evidence of Mr Jones, four kilometres earlier, if the presumption is to apply, that state of affairs four kilometres earlier would obtain at the time of the conclusion. That is, Mr Carian must have been in charge, therefore, the only way in which that cannot be the conclusion he reaches is if the presumption is displaced such as to bring about a finding, I suppose, that Elton was the person in control of the bike, rather than Carian, as had been the situation.

GLEESON CJ: He seems to be saying, unless the presumption of continuance is displaced, it requires a conclusion that Carian is in control - - -

MR SEMMLER: Yes, that is what he is saying.

GLEESON CJ: If the presumption of continuance is displaced, that requires a conclusion that Elton was in control.

MR SEMMLER: Yes. Well, it brings us back to the point of the onus in this. That is what he seems to be saying and, indeed, in that, our submission would be that it is probably an error in reasoning that requires or justifies the Court of Appeal's decision to send it back for a retrial. Your Honours, with all due respect to the trial judge, his reasons in this case are totally unsatisfactory. Given the stakes, in particular the stakes so far as my client is concerned - he has lost the use of his arm, we have another - the defendant, in his litigation, is a man who, on multiple occasions, has made admissions that he was the rider.

Now, true it is that the Court of Appeal regarded some of those admissions as justifiably rejected by the trial judge, but there was a clear, unambiguous, unequivocal admission by Mr Elton, who broke his leg in this accident, that he was the rider, to a completely independent witness within minutes of this accident occurring.

McHUGH J: Yes, but within minutes he had told an ambulance officer that your client was - - -

MR SEMMLER: Your Honour, at the risk of digressing - that is true, your Honour, but that is within a much longer period, it would seem, if one looks at the ambulance records, the time when they arrived, than the immediate reaction and conversation that he has with Mr Cooper. It is within a sufficient period as the President of the Court of Appeal indicated, for him to, in effect, consider his position and he similarly does it with the hospital people. Of course, immediately after the accident he is on the road, someone comes out, says, "Who was riding?". He is not talking about, "Were you on that bike?". It is patently apparent he and the other man, who is in a coma in a foetal position, were on the bike. He is being asked, "Who was in charge?", and he says, "I was".

It was unequivocal; it was unambiguous; the police officer accepted that that is what Mr Cooper said. Mr Cooper gave evidence to the District Court and he was unequivocal about it as well. Your Honour Justice McHugh says, "Well, where is the evidence in Mr Hislop's three cases? Where is the unequivocal evidence pointing to Carian discharging the onus of proof?". That is where the evidence is, it is in that admission, apart from all the other admissions that Mr Elton makes.

McHUGH J: But the judge did not accept it.

MR SEMMLER: Well, he does not. Your Honour, that is the reason why this is so completely unsatisfactory to the litigants, apart from to the appellate courts. He does not say it. What he does is, he says, "I have some evidence here, part of which I accept, from an unreliable witness, but I accept this. I apply the presumption of continuance.". In the course of that process of reasoning, he covers much of the evidence in the case and all he concludes is there is no unequivocal evidence.

McHUGH J: But you have no case unless you can rely on an admission, can you, and the judge rejected all of the admissions?

MR SEMMLER: That is true, your Honour. We relied on the admissions, in particular, the admission to Mr Cooper. The judge does not say, with respect, that he rejects that admission.

GLEESON CJ: Where do we find him dealing with the admission?

MR SEMMLER: At pages 6 and 7, starting at line - - -

McHUGH J: There is more than that. There is a whole series of them that he deals with.

MR SEMMLER: Well, he deals with the later ones on page 8, but so far as Mr Cooper's admission is concerned, he deals with it on page 6, and he recounts the admission at the bottom of page 6 and he says, "I do not doubt the honesty of Mr Cooper". Now, the applicants for special leave in this application say, "Well, here is a clear Abalos Case". But it was not an Abalos Case at all. Firstly of all, the judge made no finding as to whether he accepted witness X as opposed to witness Y, unlike in Abalos where the trial judge accepted Ms Archer and rejected Professor Ferguson.

What the learned trial judge in this case did was to recount the admission, say that he did not doubt the honesty of Mr Cooper and then for reasons set out at the top of page 7 down to about halfway down the page, says, "Well, these are things that cause me difficulty". But he does not even, having done that, say at the end, "Well, the difficulties are such that I reject this evidence of this man that I regarded as honest", or alternatively, "The difficulties are not such that they overcome my impression. I think that this was one thing that he was very certain about and I accept it.".

GLEESON CJ: Well, he must be dealing with the admission on page 10, line 40.

MR SEMMLER: That is correct. He has - - -

GLEESON CJ: That must be the context. That sentence, "that there is no unequivocal evidence upon which I can safely rely", is really the conclusion that he reaches about the admission he refers to on page 6 and then discusses between pages 6 and 10.

MR SEMMLER: Your Honour, we would accept that, but to use the words "there is no unequivocal evidence", does not resolve the conflict that arises between Mr Cooper saying, "Look, this is what Mr Elton said", on the one hand, and Mr Elton saying, "Well, I was the passenger up until - - -

GLEESON CJ: Well, there was unequivocal evidence but he said he could not safely rely on it. That must be what he is saying, must it not? The evidence of the admission is unequivocal. The evidence of the admission made first is unequivocal but the judge said he could not safely rely on it.

MR SEMMLER: Yes. Your Honour, but that then brings us to why we are here in this Court. The Court of Appeal scrutinised all of this. The majority said, "Well, no, it is unsatisfactory".

McHUGH J: No, you keep talking about the majority. The reasons of the two majority judgments are as different as chalk and cheese. Justice Fitzgerald would not have a bar of the approach of Justice Mason.

MR SEMMLER: Your Honour, I would accept that, and that simply belies the completely unsatisfactory nature of the reasons of the trial judge and the findings, or lack of them, that he made. That is the reason why there is such disparate judgments in the Court of Appeal. This is a clear case, in our submission, of failure to give adequate reasons, failure to make proper findings.

McHUGH J: But you would not support Justice Fitzgerald's judgment, would you, at page 60, line 30, when he says:

Because Mr Cooper's evidence of Elton's admission was disregarded, the trial judge did not correctly assess the reliability of Elton's evidence.

You did not disregard - - -

MR SEMMLER: Well, your Honour, there are parts of what Justice Fitzgerald said that we would readily embrace. Not all of it, because some of what he says is contrary to the submissions that I am putting. But the fact that so many minds applied to this 10-page judgment can come up with so many different conclusions - the reason is, there are not enough findings. The reasoning is based, we would say, upon a most unsatisfactory premise and they are not even findings. In a case where there is a head-on - where the critical issue is who was riding, we do not even know at the end of reading the judgment whether the judge accepts the evidence of the only participant who could actually remember most of the journey. We do not even know that. Indeed, the implication is, as the President of the Court of Appeal decided, he did not accept it.

McHUGH J: Well, Justice Fitzgerald thought he did and so did Justice Handley.

MR SEMMLER: Yes. Your Honour, I accept that, and I, by no means, say that all of our submissions are based upon all of what was said by the majority in the Court of Appeal. But in the final analysis, it is not an Abalos Case. The Court of Appeal was - to the extent that they did, they were justified in looking at the trial judge's explanation for the difficulty that he had with this unambiguous, unequivocal admission, or evidence of the admission given by Mr Cooper. The Court of Appeal was completely justified, within the law as it stands, in applying their own cerebral effort to that page, to page 7, and reaching the conclusion, to the extent that they did, that his Honour's rejection of that unambiguous admission was unsatisfactory and not called for.

Because these were not credit issues. The judge had found the man was an honest man, but he said, "Well, there is an ambiguity about the words". All three of the Court of Appeal judges rejected the notion that there was any ambiguity. He said he was in pain; he did not mention it to the police constable. In fact, he did, and the police constable gave evidence to that effect, which was not challenged. His explanation was, "Look, Mr Elton told me he was the rider, but I did not want to become involved and so I asked the police that that be omitted from my statement". It is an understandable explanation.

Your Honours, it is a substantial case so far as one of the litigants are concerned. The judgment was unsatisfactory. The Court of Appeal were entitled to look at it, not as a judgment that was protected by the Abalos principle of restraint but, rather, as one where they could look at the judge's reasoning and decide for themselves whether his reasons made sense and for different reasons, the majority decided that it was unsatisfactory, and the proper course, in our submission, is to allow it to go back for a retrial where the litigants, at least, as well as any appellate court, will have the benefit of proper findings and proper reasons so that they can both walk away saying, "Well, justice was seen to be done". Those are our submissions.

GLEESON CJ: Yes, Mr Semmler. Yes, Mr Sutherland.

MR SUTHERLAND: Your Honours, we respectfully adopt what fell from your Honour the Chief Justice earlier, that his Honour the learned trial judge overstated the importance of the presumption of continuance. This case, I would respectfully adopt what Mr Semmler has put to you, is not an Abalos Case.

McHUGH J: Why? If you accept what Justice Handley found, and if you accept what Justice Fitzgerald found, it was an Abalos Case, because, on those findings, the trial judge accepted Elton.

MR SUTHERLAND: If one accepts those two judges below, it could have been an Abalos Case, but it was not because had it been Abalos, there was no need to go to the presumption of continuance. If one accepted Mr Elton when he said, "I was riding when the new road started", conjoined with the independent witness who says, "The sound of the motorbike did not stop", there was no need to consider a presumption of continuance. It only came into play because of either the inability or reluctance of the learned trial judge to make a decision based upon the credibility of witnesses. Justice Fitzgerald, having said his Honour found impliedly an acceptance of Elton, went on - can I take your Honour's to Justice Fitzgerald at page 58 of the application book, paragraph 65. His Honour said this:

The trial judge appears to have placed considerable weight on the presumption of continuance.

Then, after discussing it, his Honour said, over the page at paragraph 66:

In my opinion, his Honour overstated the importance of the presumption of continuance in this case.

And went on to discuss the basis of that, and it is our respectful submission that when one goes back to the President, Justice Mason gave four reasons for intervention, but one of them was the presumption of continuance so that there is actually a concordance between those two judges. Whilst one may find various reasons why their reasoning differed in a number of regards, it was, at the end of the day, the presumption of continuance upon which the learned trial judge hung his hat.

His Honour found that Bobby Jones was to be accepted, and you have been recently taken to that, I think it is at page 3 in the application book. Mr Semmler took you to that moments ago. If I could just remind you of that aspect of the conclusion. At line 21:

when he last saw the motorcycle Carian was in control of it.

So that is the starting point.

Although Jones was a very unsatisfactory witness who, in my opinion, was deliberately unhelpful to the court, he was a close friend of Carian and likely to be sympathetic to his cause. For that reason I accept the truth of his assertion in the statement that Carian was in control of the motorcycle when it was last under his observation. This conclusion accords with the evidence of Elton -

So that was the clear evidence that started off with Carian on the bike. His Honour then went on to deal with Swinburne, and what his Honour gleaned from Swinburne at page 5 was that:

although the majority of the court thought that it was open to the trial judge to find that the presumption had been rebutted -

this is at line 31 and following -

Mason P thought it was not -

and his Honour then went on to find that, in his reading of Justice Powell's reasoning in Swinburne, that his Honour may have been prepared to "accept that the presumption could have applied". We respectfully submit that a fair reading of Justice Powell's decision, in that regard, does not support that at all. But what his Honour the trial judge was doing was using the presumption of continuance as a justification for his ultimate result.

GLEESON CJ: What do you understand to be the meaning of the sentence that begins in the second last line on page 5?

MR SUTHERLAND: Having taken the best evidence that he could accept without argument, ultimately, namely, Jones saying Carian was in charge of the motorcycle, the presumption of continuance, which was said to have had an application in Swinburne for a period of at least an hour, could, in a circumstance where perhaps the journey was from 11.15 and the ambulance was called at 11.35, clearly have an application, and that unless it could be displaced, the conclusion that Carian was in control of the bike would follow. So what his Honour was posing there - - -

GLEESON CJ: But he seems to say displacement of the "presumption of continuance" would "require a finding that Elton was the person in control".

MR SUTHERLAND: My interpretation of that, Chief Justice, is that he was looking to say that it would require evidence to displace it and the effect of that - - -

GLEESON CJ: Well, there is an intermediate logical possibility, which is that the presumption of continuance does not lead to a conclusion either way. In other words, that this is a case in which the presumption of continuance is of little, if any, assistance. That does not require a conclusion that Elton was in control, it just means it is an open question.

MR SUTHERLAND: We would respectfully disagree. We would respectfully submit that his Honour was using it, not as a tool for saying, "I cannot make a decision", but using it as "the" tool to "the" decision which he ultimately reached.

GLEESON CJ: I understand that, but he seems to be saying, "The presumption of continuance will determine the outcome of this case unless there is something that requires a finding that Elton was in control".

MR SUTHERLAND: Indeed, and that is the very basis upon which, in my submission, the President below, and Justice Fitzgerald, in so far as his comments apply to the presumption of continuance said, "His Honour was wrong. His Honour placed too much weight on the presumption of continuance." We are talking about a motorcycle travelling three or four kilometres and if it took 20 minutes or if it took half an hour, one does not need to be Einstein to say at 60 kilometres an hour you are doing it in three or four minutes. So the question was, was it open, did the presumption apply or was it equally consistent that the bike could have stopped and the boys could have changed positions?

It was the overemphasis on the presumption of continuance that, in my respectful submission, led the Court of Appeal, in conjunction with the other reasoning, to send it back, and that there is no reason of general principle for this Court to intervene to say that they ought not to have. In short, that is my submission.

GLEESON CJ: Thank you, Mr Sutherland. Yes, Mr Hislop - or Mr Jackson. Have you agreed on which of the two of you will - - -

MR JACKSON: I do not mind going first, your Honour. Your Honour, may I say these things? First of all, if one goes to the central passage at page 10, what one sees is that what the judge in that paragraph is talking about is, who was in control of the motorcycle at the time when it struck the tree, and what he says in the first sentence is that there is no unequivocal evidence upon which he can safely rely to say that one rather than the other was in charge of the bike at that point. Your Honours will then see - it is the second sentence where he expresses a view about the reliability of evidence and he says:

The only evidence which I regard as reliable . . . indicates that Carian - - -

GLEESON CJ:

using as an aid the presumption of continuance - - -

MR JACKSON: Yes. Now, what he is saying, your Honour, is a presumption, really, no more than that, things do not change, and all he is saying is that the evidence he has accepted indicates that Carian was in control when the bike was last seen, in effect.

GLEESON CJ: When you look at the bottom of page 5, it is pretty clearly, is it not, that the presumption of continuance determined the outcome of this case?

MR JACKSON: Well, your Honour, I suppose that is right, in a sense, but it depends what one means by "the presumption of continuance". All the judge - - -

GLEESON CJ: Well, it was used as a tabula in naufragio. His Honour had four cases being heard together; he was not going to decide them on the basis of the onus of proof, he was going to get a result, and he got the result from the presumption of continuance.

MR JACKSON: Yes. Well, your Honour, it is a question whether it was in naufragio or not, I suppose, in the sense that he was simply applying to very basis facts, and if I could just say something more about those in just one moment; the ordinary inference.....the ordinary inference as one would draw. What I mean by that, your Honours, is this. If one goes to page 4, your Honours will see, commencing in the third line on that page, "Both in his statement and in his evidence", that appears to have been a passage that was accepted by the judge:

Both in his statement and in his evidence Elton indicated that they travelled by a more or less direct route to the scene of the accident a distance of only a few kilometres. In the circumstances I infer -

There is no suggestion that he - not accepting that part of the evidence. One then goes to the statement at paragraph 7 on the same page and the oral evidence to the same effect, and then at the top of the next page, one sees, he says, "There is some significance" in the reference to the "new part of road" because there is only 200 metres between where that starts and the tree. He said:

This would suggest that during that period at least Carian and Elton did not change places.

It is in that context, your Honours, that one sees him saying, in relation to Swinburne's Case, further down the same page at about line 39, he is saying, "even though", in that case, "the time lapse . . . was at least one hour", but still "the presumption could be applied". He then goes on to say, at the bottom of page 5:

The question remains whether the presumption of continuance has been displaced in this case so as to require -

and then your Honours will see the way he says "bike at the time of the accident". It is in that context, one sees him dealing with the evidence to the contrary. Your Honours, our submission is if one applies our learned friend Mr Semmler's peroration, justice needs to be seen to be done by those who walk out of the court, that justice of the case require they had been walking out of the Court of Appeal, the judgment below not be disturbed.

GLEESON CJ: Mr Hislop.

HIS HONOUR: I have nothing further, if it please the Court.

GLEESON CJ: This case turned upon an analysis by the Court of Appeal of the reasoning of a trial judge in an awkward factual situation. The members of the Court of Appeal came to different views as to the question whether the reasoning of the trial judge was satisfactory or such as to require an order for a new trial. By a majority the Court of Appeal concluded that there ought to be an order for a new trial.

The case does not raise any question of principle appropriate to a grant of leave to appeal to this Court and the applications for special leave to appeal should be refused with costs.

We will adjourn for a short time to reconstitute.

AT 11.39 AM THE MATTER WAS CONCLUDED